LOUISIANA CONSTRUCTION CLAIMS RESOURCES
1 CONSTRUCTION CLAIMS
- 1.1 Limitations & Repose Periods §§3499, 3492, 3500 2772
- 1.2 Right to Repair Laws and/or Pre-Suit Statutory Procedures
- 1.3 Indemnity and Contribution
- 1.4 Certificate of Merit
- 1.5 Economic Loss Doctrine
- 1.6 Contractor Licensing Requirements
- 1.7 Common Law & Statutory Claims
- 2 CONSTRUCTION DAMAGES
- 3 COVERAGE TRIGGER OF COVERAGE
Limitations & Repose Periods §§3499, 3492, 3500 2772
Statute of Repose
Louisiana has a statute of repose of five (5) years after the date of registry in the mortgage office of acceptance of the work by owner. LSA-R.S. 9:2772
Statute of Limitation
An action against a contractor or an architect on account of defects of construction, renovation, or repair of buildings and other works is subject to a liberative prescription of ten (10) years. LSA-C.C. Art. 3500.
Unless otherwise provided by legislation, a personal action, including an action based on contract, is subject to a liberative prescription of ten (10) years. LSA-C.C. Art. 3499.
Delictual actions, including tort and property damage actions, are subject to a liberative prescription of one year. LSA-C.C. Art. 3492.This prescription commences to run from the day injury or damage is sustained. Id. It does not run against minors or interdicts in actions involving permanent disability and brought pursuant to the Louisiana Products Liability Act or state law governing product liability actions in effect at the time of the injury or damage. Id.
Right to Repair Laws and/or Pre-Suit Statutory Procedures
There is no right to repair in Louisiana.
Indemnity and Contribution
If, within ninety days of the expiration of the five-year preemptive period described in Subparagraph (a) of this Paragraph, a claim is brought against any person or entity included within the provisions of this Subsection, then such person or entity shall have ninety days from the date of service of the main demand or, in the case of a third-party defendant, within ninety days from service of process of the third party demand, to file a claim for contribution, indemnity or a third-party claim against any other party. La. Stat. Ann. § 9:2772.
Notwithstanding any provision of law to the contrary, any provision, clause, covenant, or agreement contained in, collateral to, or affecting a construction contract which purports to indemnify, defend, or hold harmless, or has the effect of indemnifying, defending, or holding harmless, the indemnitee from or against any liability for loss or damage resulting from the negligence or intentional acts or omissions of the indemnitee, an agent or employee of the indemnitee, or a third party over which the indemnitor has no control is contrary to the public policy of this state and is null, void, and unenforceable. La. Stat. Ann. § 9:2780.1.
Certificate of Merit
Louisiana law does not require a Certificate of Merit.
Economic Loss Doctrine
The Louisiana Supreme Court has adopted a modified version of the economic loss rule. See PPG Industries, Inc. v. Bean Dredging, 447 So. 2d 1058 (La. 1984). Pursuant to the Louisiana Supreme Court’s ruling in PPG Industries, Inc., courts make case-by-case adjustment in accordance with policy to determine the reach of rule PPG, considering whether there is an “ease of association” between “the rule of conduct, the risk of injury, and the loss sought to be recovered.” Wiltz v. Bayer CropScience, Ltd. P'ship, 645 F.3d 690, 697 (5th Cir. 2011).
Contractor Licensing Requirements
Common Law & Statutory Claims
Cost of Repair
For the breach of a building contract under Article 2769, the appropriate measure of damages is the cost of repairing any defects or of completing the work. Mount Mariah Baptist Church, Inc. v. Pannell's Assoc. Electric, Inc., 36,361 (La.App. 2d Cir.12/20/02), 835 So.2d 880, writ denied, 03–0555 (La.5/2/03), 842 So.2d 1101.
Diminution in Value
Generally, when a person sustains property damage due to the fault of another, he is entitled to recover damages including the cost of restoration that has been or may be reasonably incurred, or, at his election, the difference between the value of the property before and after the harm. Roman Catholic Church of Archdiocese of New Orleans v. Louisiana Gas Serv. Co., 618 So. 2d 874, 879 (La. 1993)
Punitive damages may not be awarded unless authorized by the law of the state where the injurious conduct occurred and by either the by (1) law of the state where the resulting injury occurred or the law of the place where the person whose conduct caused the injury was domiciled; or (2) the law of the state in which the injury occurred and by the law of the state where the person whose conduct caused the injury was domiciled. LA-C.C. 3546.
Attorney’s fees are not recoverable absent statutory or contractual provisions providing for said fees. Maloney v. Oak Builders, Inc., 2235 So. 2d 386, 390 (La. 1970) (citing Hernandez v. Harson, 111 So.2d 320 (La. 1959)).
Joint & Several Liability
Louisiana defendants are generally severally liable. La. Code Art. 2324 (1979); Johnson v. Morehouse Gen. Hosp., 63 So.3d 87 (La. 2011). There is no right to contribution among severally liable defendants as each is liable to pay only its share of the plaintiff’s damages. Cole v. Celotex Corp., 599 So.2d 1058 (La. 1992).
Defendants who are found to have conspired to commit an intentional tort, however, are jointly and severally liable to the plaintiff. La. Code Art. 2324 (1979); Ross v. Conoco, Inc., 828 So.2d 546 (La. 2002).
Cost Incurred to Access Repair Areas
Louisiana permits recovery of consequential damages, however such damages may be limited or waived. See, e.g., Palermo v. Homes and More, Inc., 286 So. 3d 557 (La. App. 3 Cir. 12/18/19).
COVERAGE TRIGGER OF COVERAGE
Definition of an Occurrence
Occurrence is generally understood to mean the time and/or event when negligence manifests itself by causing actual damages, rather than the commission of the causative negligence. St. Paul Fire & Marine Ins. Co. v. Valentine, 665 So. 2d 43, 46 (La. App. 1 Cir. 11/9/95)
Duty to Defend
A carrier’s duty to defend the insured is broader and distinct from its obligation to provide coverage. See Steptore v. Masco Constr. Co., 643 2d 1213, 1218 (La. 1994). Therefore, a carrier’s duty to defend arises when there is “even a possibility of the liability under the policy.” Smith v. Reliance Ins. Co., 807 So. 2d 1010, 1021 (La. App. 5 Cir. 1/15/2002) (emphasis in original).
Claims for indemnity of a contracting party’s contractual indemnification obligations to a third party are only viable when the applicable contractual language is clear and express and the alleged indemnitor has notice of the obligation and gives his express consent. Marshall v. Sw. Louisiana Elec. Membership Corp., 915 So. 2d 1026, 1029 (La. App. 3 Cir. 11/2/05).
Louisiana’s anti-indemnification statute, states: “Notwithstanding any provision of law to the contrary, any provision, clause, covenant, or agreement contained in, collateral to, or affecting a motor carrier transportation contract or construction contract which purports to indemnify, defend, or hold harmless, or has the effect of indemnifying, defending, or holding harmless, the indemnitee from or against any liability for loss or damage resulting from the negligence or intentional acts or omissions of the indemnitee, an agent or employee of the indemnitee, or a third party over which the indemnitor has no control is contrary to the public policy of this state and is null, void, and unenforceable.” La. Stat. Ann. § 9:2780.1.
The interpretation of an additional-insured endorsement is a question of law, which requires an examination of the language of the particular endorsement to determine its meaning. Jones v. Capitol Enterprises, Inc., 2), 89 So. 3d 474, 484 (La. App. 4 Cir. 5/9/12).
Insureds Right to Independent Counsel
Where the insurer is faced with a dilemma between its duty to defend its insured from liability and its right to contest coverage with its insured, the insured may retain his own independent counsel and is entitle to reimbursement of his fees. Belanger v. Gabriel Chemicals, Inc., 787 So. 2d 559, 564–65 (La. App. 1 Cir. 5/23/01).
To recover on an insurance policy, an insured must prove that is loss was covered under the policy, if the burden is satisfied, insurer must then demonstrate the applicability of exclusions. Maldonado v. Kiewit Louisiana Co., 146 So. 3d 210, 218 (La. App. 1 Cir. 3/24/14).
Choice of Law (Forum Selection Clauses)
Forum-selection clauses are valid and enforceable in Louisiana. Reynolds v. Paulson, 871 So. 2d 1215, 1220 (La. App. 4 Cir. 3/31/04). The party seeking to set aside such a provision bears a heavy burden of clearly proving that enforcement would be unreasonable and unjust, or that the forum-selection clause arises from fraud or overreaching, or the clause contravenes a strong public policy of the forum where the suit is brought. Id.
A Consent judgment is a determination of the rights of the parities and acquires the authority of the thing adjudged. Thibodeaux v. Thibodeaux, 511 So.2d 102, 104–105 (La.App. 3rd Cir.1987). It is well settled that transactions between the parties have a force equal to the authority of things adjudged. They cannot be attacked on account of any error in law or any lesion. Id.